2001 P Cr (PLP)

AHMED KHAN LASHARI, J.

This appeal has been preferred against the judgment, dated 26-8-1999 passed by Special Judge for Suppression of Terrorist Activities/Additional Sessions Judge-I, Quetta, whereby the appellant has been awarded death penalty for two counts under sections 302(b) and 365-A,,P.P.C.

2. Briefly stated facts of the prosecution case are that on 18-9-1998 P.W.1 complainant Dr. Jehandad Shah, the father of deceased Ameenullah alias Khan aged about 10 years alongwith his other family members went to Killi Hakelzai to participate in the engagement ceremony of one of his relatives. At about 10 p.m., when the complainant managed to come back to his house, the deceased Ameenullah was found missing and could not be located, efforts were made for his search but failed. On 19-9-1998 the complainant reported the matter to Levies Thana, Pishin, however, no progress was made. Eventually on 21-9-1998 F.I.R. was lodged with Levies Thana, Pishin, and the same was reduced into writing under section 364, P.P.C. against unknown persons. On 30-9-1998 complainant approached the Assistant Commissioner, Pishin, on suspicion that his son has been abducted by the appellant, resultantly the appellant was arrested on the said date. During investigation he disclosed that he had committed murder of deceased Ameenullah and the dead body was lying/hidden in a nearby well. Accordingly disclosure memo. was prepared even crime weapon i.e. pistol was discovered at the pointation of appellant which was lying in the room of his house, blood-stained earth was obtained from a room (which was used for keeping hay) of house of appellant where incident took place. It is pertinent to mention here that during course of investigation, the confessional statement of appellant was also got recorded under section 164, Cr.P.C., by P.W.2 wherein he confessed his guilt. After recording of statement of prosecution witnesses under section 161, Cr.P.C. the challan of the case was submitted before Special Judge for Suppression of Terrorist Activities/Sessions Judge, Pishin. During trial of the case appellant did not engage defence counsel, therefore, learned trial Court appointed a pauper counsel to defend the case of appellant. A reference was made to Registrar of this Court, for transfer of the case, as no Advocate was ready to hold the brief of the .case on behalf of appellant, on the said reference the case was transferred to Sessions Judge, Quetta.

3. The learned Sessions Judge/S.T.A., Quetta, framed the charge against the appellant on 24-4-1999 under sections 302/365-A, P.P.C. to which the appellant pleaded guilty but learned trial Court felt necessary to issue him a notice as provided under section 243, Cr.P.C. on 28-4-1999. The show-cause notice was replied on 30-4-1999 stating therein that at the time of framing of charge the appellant had lost his senses and was confused. After reply to show-cause notice, the learned Special Judge, S.T.A./Sessions Judge, Quetta, transferred the case to the file of Special Judge S. T. A. /Additional Sessions Judge-1, Quetta on 8 7-1999 where trial was commenced. In order to establish its case the prosecution examined the following ten (10) witnesses. P.W.1 Dr: Jehandad Khan who is complainant, on 19-9-1998 he lodged a complaint with the Tehsildar Pishin regarding missing of his child, which was brought on record as Exh.P.1/A. On 21-9-1998 formal F.I.R.,.was lodged with the Tehsildar, Pishin which was numbered as 56 of 1998, and produced as Exh.P.1/B. He also received the dead body of his son vide receipt produced before the Court as Exh.P.1/C. P.W.2 is Munir Ahmed Marri, Senior Civil Judge/Incharge Judicial Magistrate, Pishin, who got recorded the confessional statement of appellant under section 164, Cr.P.C., the confessional statement of appellant was produced as Exh.P.2/C, and certificate Exh.P.2/D, the said witness also got recorded the statement of a witness namely Saadullah as Exh.P.2/A and issued certificate which is Exh.P.2/B. P.W.3 is Naseebullah Levies Jamadar, in whose presence disclosure was made by the appellant and dead body was recovered and memo. was prepared which was produced as Exh.P.3/A and also identified his signature on the site plan made on the pointation of appellant as Exh.P.3/B. P.W.4 Muhammad Saleem Levies Sepoy who is witness to recovery memo. of blood-stained earth of deceased Aminullah which was produced as Exh.P.4/A. He also stood witness to sack where the dead body was put in it, Article P.3 pistol was recovered in his presence at the pointation of appellant. The recovery memo. was prepared and produced before the Court as Exh.P.4/B, the witness identified his signature on it. The sack was also taken into possession vide recovery memo. produced before the Court as Exh.P.4/C. The clothes of the deceased Ameenullah produced before the Court through recovery memo. Exh.P.4/D apart from certain other articles. P.W.5 is Hawaldar Syed Abdul Wahid, who is witness to the recovery memo. of pair of clothes which was produced as Exh.P.5/A. He also stood witness to the recovery memo. of letter which were allegedly written to the father of deceased for demanding Rs.10 lacs against release of his son. The recovery memo. of the letter was produced as Exh.P.5/B, identification process of the letter was made and accordingly memo. was prepared which was produced Exh.P.5/C and letter was produced and exhibited Exh.P.l

5. P.W.6 Dr. Iftikhar-ul-Hassan, who examined the dead body and issued medical certificate which was brought on record as Exh.P.6/A. P.W.7 Abdul Rehman, Naib-Tehsildar, who arrested the appellant from Killi Hakelzai and investigated the matter in his presence. He disclosed the above stated facts regarding murder of deceased Aminullah and prepared the recovery memo. which was produced as Exh.P.3/A and site plan Exh.P.3/B. He.also prepared site plan of the well where dead body was recovered which was brought on record as Exh.P.7/A. He also prepared the recovery memo. of pistol as Exh.P.4/B and map of the house as Exh.P.7/B, then investigation of the case was handed over to Tehsildar Naseer Ahmed (P.W.10). P. W.8 Saadullah in whose presence, the appellant made a Extra judicial confession that he had abducted and killed the deceased Ameenullah. The statement of this witness was got recorded by P.W.2 Munir Ahmed Marri under section 164, Cr.P.C. P.W.9 Sher Khan Bazai, Assistant Commissioner, who also stood witness to the recovery memo. already produced as Exh.P.5/C. P.W.10 Naseer Ahmed, Naib-Tehsildar/ Investigating Officer, who after completion of necessary investigation submitted the challan (Exh.P.10/A) before the trial Court. The statement of convict/appellant was got recorded under section 342, Cr.P.C., wherein he denied the allegation the convict/appellant neither recorded his statement on oath as provided under section 340(2), Cr.P.C., nor he led any defence. The learned trial Court after conclusion of the trial convicted and sentenced the appellant as mentioned above vide its judgment, dated 26-8-1999. Being aggrieved of the judgment, dated 26-8-1999 passed by learned Special Judge for S.T.A./Additional Sessions Judge-I, Quetta, this appeal was filed.

4. Mr. Qahir Shah, Advocate, learned counsel for convict/appellant while arguing the case contended that the confessional statement of appellant does not reveal the recoveries as allegedly effected on his pointation i.e. recovery of pistol and dead body of deceased Aminullah from a well. He argued that the confessional statement was neither true nor voluntary, the same has been recorded with coercion and threat. Even the confessional statement of convict/appellant has been recorded with delay of about 10 days and no explanation has been put forth for such delay. The certificate issued by P. W.2 Munir Ahmed does not- show that the confessional statement of the appellant was recorded voluntarily. Since the appellant has retracted from his confession, therefore, the same has no value in the eye of law and the appellant could not be convicted on the basis of this retracted confession. He relied on the case-law reported in 1996 PCr.LJ 1477. It is next argued by the counsel that there is no evidence available on record that the deceased was last seen in the accompany of appellant, even there is no direct evidence available on record to implicate the appellant in the commission of offence, therefore, circumstantial evidence could not be used for conviction of the appellant. The alleged recoveries have been effected much before the confessional statement. If the confessional statement was true the alleged recoveries i.e. pistol and dead body must be mentioned in the confessional statement. It is next argued that the alleged letter on the basis of which the appellant was arrested was neither sent to Handwriting Expert to ascertain whether the same has been written by the appellant or otherwise, nor Najeebullah who allegedly handed over the letter to appellant was produced before the Court. The motive set up by the prosecution is improbable if it is believed then why the child was killed just after his abduction and the motive remained shrouded in mystery. P.W.8 Saadullah was arrested in this case and tortured, his statement was also got recorded under section 164, Cr.P.C., alleging therein the appellant made extra judicial confession before him regarding abduction and killing of Aminullah. In the circumstances, since the said witness has been arrested and tortured his statement is of no value. He relied on the case-law reported in 1996 SCMR 188.

5. Mr. Muhammad Hashim Khan Kakar, Advocate appeared on behalf of complainant, who argued that during investigation of the case on the pointation of convict/appellant the weapon of offence i.e. pistol was recovered from a room of the house of appellant and blood-stained earth was also obtained where the deceased was killed. Even the dead body was recovered on his pointation from an abandoned well which was put in a sack; then he voluntarily got recorded his confessional statement before P.W.2 narrating and admitting the facts. The evidence and recoveries connect the appellant in the commission of offence. No basic difference exists between the confession or retracted confession if the element of truth is not missing, since the appellant has been given full account of incident and its truth is not doubted. Such statement is proved to be correct even such piece of evidence can be used against the appellant without' any further corroboration. In support of his contention reliance was made on the case-law reported in 1992 SCMR

950. It is stressed that under section 13-E of Arms Ordinance, regarding recovery of weapon of offence i.e. pistol, the appellant admitted the charge and accordingly he was -convicted on his confession which also draws inference to believe that pistol, from the room of appellant on his pointation has been recovered and fully connects him in the commission of offence. The certified copy of the said judgment passed under section 13-E of Arms Ordinance, 1965 was brought on record as provided under section 58 of the Evidence Act, while concluding his arguments learned counsel for complainant stated that the conviction and sentence awarded by the learned trial Court be maintained in toto.

6. Mr. Ghulam Mustafa Mengal, Assistant Advocate-General while arguing on behalf of State stressed that the evidence available on record is sufficient for conviction of the appellant and no illegality or irregularity has been pointed out in the impugned judgment. The statement of witnesses in whose presence the pistol and dead body were recovered from a nearby well on the pointation of appellant, were subjected to cross-examination but they stood firm to their testimony. Even the medical certificate issued by P.W.6 and confessional statement of appellant fully connect him with the commission of alleged offence. The prosecution has fully proved its case beyond any shadow of doubt. He relied on the case-law reported in 1997 SCMR 476 and prayed for maintaining the conviction and sentence awarded by trial Court.

7. We have given considered thought to the arguments of learned counsel for the parties and perused the record carefully. The participation of complainant Dr. Jehandad alongwith his deceased son and other family members in the engagement ceremony of one of relative of the parties at Killi Hakelzai, has not been refuted by the convict/appellant, as alleged, the missing of child has also remained undisputed and the appellant also participated during search of deceased when they failed to search out the child, the matter was reported on the very next day with Levies Thana, Pishin, but when whereabout of the child was not known then formal report was lodged with Levies Thana, Pishin under section 354, P.P.C. against unknown persons. Till 27-9-1998 the complainant did not know about the whereabouts of his son, when on 28-9-1998 the complainant received a letter through one Najeebullah which was written by unknown accused demanding Rs.1 million as ransom for release of his son. It was written in the said letter that the amount be sent through Zahii or Ashraf (present appellant). On receiving this letter the complainant suspected the appellant and his arrest was made by the Law Enforcing Agencies on 30-9-1998. After arrest of the appellant he disclosed certain facts before P.W.7 Abdul Rehman, Naib Tehsildar regarding the murder of deceased Aminullah and on his pointation the dead body was recovered from a nearby abandoned well in presence of witnesses. He also disclosed that he had killed the deceased with pistol and the weapon of offence was lying in his house situated at Killi Hakelzai, where betrothal ceremony had taken place, again in presence of witnesses the appellant produced the pistol and recovery memo. was prepared. He further pointed out one room of his house, where he killed the deceased, blood stained earth was found from the said room, where usually hay is to be kept. All the recoveries which were made on the pointation of appellant, connect the appellant in the commission of offence. The next material evidence came on record is confessional statement of appellant though the learned counsel for appellant argued that same is neither true nor v6luntary and has been recorded with coercion and threat, the conviction could not be based on the said confessional statement. It is held that no basic difference exists between confession or retraction, if element of truth is not missing and it is always, a question of fact which is to be adjudged by the Courts on the attending circumstances when an accused gives an account of incident and its truth is not doubted, such statement is proved to be correct in all its entirety. Such piece of evidence can be used against the accused. (1993 SCMR 950). It is also evident from the record that the appellant and complainant are relatives and residing in Killi Hakelzai where from the child stood missing. The well is also located near Killi Hakelzai. It was only the appellant who knew the place of incident where the dead body of Aminullah was put in a sack and dumped in the well. The exclusive knowledge of appellant could not bee doubted at all coupled with the recovery of dead body. The recovery of pistol from the room of appellant arid blood-stained earth from hay room of the appellant suggests that the appellant committed the murder of Aminullah. Thereafter, he made himself ready for recording of the confessional statement. The arguments of learned counsel that the confessional statement has been obtained with coercion and threat has no basis, and are hereby discarded. It is argued that confessional statement has been recorded with delay of 10 days. The delay itself could not be fatal to the case of I prosecution unless some strong, solid and cogent reason is put forth for false "I involvement of appellant, hence mere delay in recording of confessional statement by P. W.7 is of no effect. The arguments of appellant's counsel that the confessional statement does not contain the details of recoveries', therefore, the same may not be considered as voluntary. It is not necessary that the confessional statement of the appellant must contain the recovery of dead body, pistol and blood-stained earth, which were made on the pointation of appellant just after his arrest. This could easily be done by the prosecution or Magistrate, who recorded the confessional statement but what the appellant stated that was reduced into writing. It means that statement has been recorded with free-will and choice of appellant. The next point argued, was that letter which was received by the complainant through one Najeebullah, was not sent to Handwriting Expert, to ascertain whether the same has been written by appellant or not. Admittedly the letter was not sent to Handwriting Expert by the Investigating Officer, rather the same was tried to be proved through a so-called identification process. The letter was mixed up with so many letters and appellant thrice took up the said letter amongst the other letters, saying that he has written this letter. It is not the matter of identification, the Investigating Officer was under legal obligation after obtaining the handwriting of appellant to have sent the same alongwith the letter to the Handwriting Expert for his opinion, hence this part of the evidence regarding letter is of no value and is disbelieved. However. it is pertinent to mention here that the said letter contained the name of appellant on which the complainant suspected the appellant and reported the matter to Levies Authorities and on his arrest certain facts were disclosed whether the letter has been written by the appellant or not, either complainant received the same through one Najeebullah is of no value or consequence and likewise non-production of Najeebullah before the trial Court as witness does not cut the roots of prosecution case. The letter was a mere clue of the case on the basis of which prosecution case was unfolded. The recoveries so effected on the pointation and disclosure of appellant in presence of witnesses i.e. P.W.8. Naseebullah, P.W.4 Muhammad Saleem, and P.W.7 Abdul Rehman, Naib-Tehsildar, all fully support the prosecution case in whose presence the recovery of dead body and pistol was made, and blood-stained earth was obtained from a room of house of appellant. They stood firm on each and every point, though they were cross-examined at length, but nothing beneficial was obtained. The appellant has not alleged any enmity, ill-will or relationship against these prosecution witnesses being interested witnesses absence of any allegation the statement of such official witnesses could not be ruled out from consideration. The statement of P.W.6 Dr. Iftikhar-ul- Hassan reveals that the deceased was murdered by a fire-arm wound on the F forehead of deceased through and through, which was not disputed by the appellant. This piece of evidence again connects the appellant regarding the murder of Aminullah by means of fire-arm, hence the recovery of pistol on his pointation and the confessional statement of appellant also corroborates each other. It is next argued by the learned counsel that the deceased was not last seen in the company of appellant as there is no direct evidence available on record. The circumstantial evidence could not be relied for conviction of the appellant. In our considered view it is not a case of last seen evidence, rather the deceased child went to the house of appellant in Killi Hakelzai, where the betrothal ceremony was going on arid the appellant kept the deceased with him thereafter, killed him. The disclosure and pointation of appellant regarding recovery of dead body, pistol and blood-stained earth apart from his confessional statement are enough to connect the appellant with the commission of offence. It is pertinent to mention here that evidence regarding abduction of child for ransom is lacking. The statement of P.W.8I Saadullah in whose presence appellant allegedly made an extra-Judicial confession by revealing certain facts regarding abduction of the child is very weak type of evidence on the basis of such evidence the conviction could not be awarded unless the same is corroborated with strong piece of evidence. The motive which has come on record that of ransom seems to be probable and plausible. The appellant after taking the child to his house then and there murdered him with single shot of pistol. It does not seem to be abduction for ransom. If it was intention of appellant to abduct him in order to obtain money from the complainant why the child was killed just after taking him to his house. Satisfactory motive always plays an important part in any case dependent entirely on circumstantial evidence. 1998 PCr.LJ

72. It is well settled law that inadequacy or weakness of motive would not lend any support to the accused when direct ocular evidence is available in case. It is well-settled principle of law now that in absence of motive being proved capital sentence cannot be awarded in the present case, where prosecution case is based on circumstantial evidence, the learned counsel has failed to show as to how the motive stood proved. (1999 MLD 1244). Thus, in our considered opinion the motive has been suppressed by the parties and remained shrouded in mystery leading to unfortunate incident. Thus, some thing most have happened between the parties which led to the said incident, which was not brought on record. In view of the assessment and reappraisal of evidence brought on record, we are, of the considered opinion that prosecution has proved its case beyond any shadow of doubt under section 302(b), P. P. C., but there is no evidence regarding abduction. As such conviction and sentence under section 365-A, P.P.C: is set aside, however, the death sentence awarded by the learned Special Judge for Suppression of Terrorist Activities/Additional Sessions Judge-I, Quetta, dated 26-8-1999, under section 302(b), P.P.C., is altered to that of life imprisonment, with benefit of section 382-B, Cr.P.C. With above modification the appeal being devoid of merits is dismissed. N.H.Q./54/Q Sentence reduced